Redmond v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 01 July 2020
• Neutral Citation: [2020] IEHC 322
• Date: 01 July 2020
• Docket Number: 2019 No. 709 J.R.
• Court: High Court

IN THE MATTER OF SECTION 50 AND 50A OF THE PLANNING AND DEVELOPMENT ACT 2000 (AS AMENDED)

BETWEEN

MICHAEL REDMOND

APPLICANT

AND

AN BORD PLEANÁLA

RESPONDENT

DURKAN ESTATES CLONSKEAGH LIMITED DUN LAOGHAIRE RATHDOWN COUNTY COUNCIL

NOTICE PARTIES

[2020] IEHC 322

Garrett Simons J.

2019 No. 709 J.R.

THE HIGH COURT

JUDICIAL REVIEW

JUDGMENT of Mr. Justice Garrett Simons delivered electronically on 1 July 2020

INTRODUCTION

1 The issue for determination in this judgment is whether the High Court, having found a particular decision to grant planning permission to be invalid in its principal judgment, should now remit the underlying planning application to An Bord Pleanála for reconsideration. The alternative approach would be to set aside the planning permission simpliciter. It would then be necessary for the developer to make a fresh application for planning permission to An Bord Pleanála.

2 The dispute between the parties on this issue centres on whether—given the grounds upon which the planning permission was found to be invalid—the planning application process can be said to have been conducted in a regular and lawful way up to a certain point in time. If so, then it would be open to the High Court to unwind the process to that point, and to direct that the process should be resumed thence and be completed in accordance with law. If, alternatively, the planning application process had been irregular from the very outset, then the planning permission should be set aside simpliciter, i.e. without any order for remittal.

3 The resolution of this issue turns largely on the legal significance to be attached to public participation rights in the planning process. The principal judgment had found that the proposed development project represents a material contravention of the development plan. The legislation envisages that where a planning application involves a material contravention, express public notice of this fact must be given at the time of the making of the application. This did not happen on the facts of the present case where the developer and the board—mistakenly—considered that there was no material contravention. The question now arises as to whether this absence of public notice, and of a statement of the justification for seeking a material contravention, is fatal to the remittal of the planning application.

ABBREVIATIONS

“PDA 2000”	Planning and Development Act 2000
“PD(H)A 2016”	Planning and Development (Housing) and Residential Tenancies Act 2016

PROCEDURAL HISTORY

4 Insofar as relevant to the net issue which now arises for determination, the procedural history can be summarised as follows. This court delivered its principal judgment in these proceedings on 10 March 2020, Redmond v. An Bord Pleanála [2020] IEHC 151 (“ the principal judgment”). As explained in the principal judgment, the first issue to be determined in the proceedings had been whether the lands, the subject-matter of the planning application, are designated as “institutional lands” under the development plan. This issue was resolved in favour of Mr Redmond, and both the developer and An Bord Pleanála were found to have been in error in thinking that the designation did not apply. The same error had been made by the board's planning inspector in her report.

5 The principal judgment went on then to find that the proposed development involves a material contravention of the development plan policies and objectives applicable to institutional lands in respect of (i) housing density, and (ii) public open space. The decision to grant planning permission was held to be invalid in circumstances where An Bord Pleanála did not seek to invoke its statutory power to grant planning permission in material contravention of the development plan (section 9(6)(c) of the PD(H)A 2016).

6 The proceedings had then been adjourned for a number of weeks to allow the parties to consider the principal judgment. The court directed that if any party intended to apply for leave to appeal to the Court of Appeal pursuant to section 50A(7) of the PDA 2000, then the draft points of law in respect of which leave was being sought were to be filed in the Central Office of the High Court and circulated to the other parties within twenty-eight days of the date of the principal judgment. The proceedings were to have been listed before the court on 24 March 2020 to address the issue of costs and any application to remit the matter to An Bord Pleanála pursuant to Order 84, rule 27 of the Rules of the Superior Courts.

7 In consequence of the restrictions on court sittings introduced in response to the coronavirus pandemic, the hearing did not go ahead on 24 March 2020. Instead, the proceedings were adjourned generally. The parties put the time to good use, and were in a position to indicate to the Registrar on 18 May 2020 that substantial progress had been reached as to the form of the final orders. The only outstanding issue between the parties

4 is as to whether there should be an order for remittal. (There is to be no application for leave to appeal, and it is agreed that Mr Redmond is to recover costs from An Bord Pleanála in the sum of €3,959.69).

8 It was also agreed that the question of whether the planning application should be remitted to An Bord Pleanála would be dealt with by the court “on the papers”, i.e. without the necessity for an oral hearing. The parties exchanged written submissions as follows.

25 May 2020	First set of submissions on behalf of developer
1 June 2020	Mr Redmond's submissions
4 June 2020	An Bord Pleanála's submissions
17 June 2020	Replying submissions on behalf of developer

9 These written submissions have been carefully considered in preparing this judgment. The relevant arguments of the parties will be referred to, in context, in the discussion below.

HIGH COURT'S DISCRETION TO REMIT

10 Order 84, rule 27(4) of the Rules of the Superior Courts (as amended in 2011) provides as follows.

(4) Where the relief sought is an order of certiorari and the Court is satisfied that there are grounds for quashing the decision to which the application relates, the Court may, in addition to quashing it. remit the matter to the Court, tribunal or authority concerned with a direction to reconsider it and reach a decision in accordance with the findings of the Court.

11 The principles governing the exercise of this discretion have been set out authoritatively in two judgments of the now Chief Justice when sitting in the High Court. In Tristor Ltd. v An Bord Pleanála (No. 2) [2010] IEHC 454, Clarke J. (as he then was) emphasised that the overriding principle behind any remedy in civil proceedings should be to attempt, in as clinical a way as is possible, to undo the consequences of any wrongful or invalid act. The court should not seek to do more than that, but equally the court should not seek to do less than that. Clarke J. went on to say that the extent to which it may be possible to do so will depend on the facts and the legal framework within which any invalid decision may have taken place. On the facts of Tristor Ltd., the court ruled that the development plan process should be taken up from the point immediately prior to the invalid Ministerial direction.

12 Clarke J. returned to discuss the remittal jurisdiction in Christian v. Dublin City Council (No. 2) [2012] IEHC 309.

“It is not necessary for a court which quashes an order or measure made or taken at the end of a lengthy process to necessarily require that the process go back to the beginning. Where the process is conducted in a regular and lawful way up to a certain point in time, then the court should give consideration as to whether there is any good reason to start the process again. Active consideration should be given to the possibility of remitting the matter back to the decisionmaker or decision-makers to continue the process from the point in time where it can be said to have gone wrong. […]”

13 Clarke J. also indicated that the court's inherent jurisdiction allows it to give directions as to the process to be followed by that decision-maker in reconsidering the matter.

“It seems to me that where a matter is referred back to a decisionmaker, the inherent jurisdiction of the court entitles the court to give directions as to the process to be followed by that decision-maker in reconsidering the matter. However, the court should, in giving such directions, attempt to replicate, insofar as it may be practicable, the legal requirements that would apply, whether under statute, rules or the like, to the making of decisions of that type. It will not always be possible to ensure exact compliance with the relevant regime, for it is in the nature of a decision having already been made and having been subsequently quashed, that some variation on the normal procedure may be necessitated.”

14 These two judgments were concerned with planning decisions of a type other than a decision to grant planning permission, i.e. a decision by a local planning authority to adopt a new development plan (Christian), and a decision by the Minister for Environment Heritage and Local Government to issue a direction pursuant to section 28 of the PDA 2000 (Tristor Ltd.). The principles in these two judgments have, however, since been applied to decisions to grant planning permission in a series of judgments including Clowes clg v. An Bord Pleanála [2018] IEHC 473, Fitzgerald v. Dun Laoghaire Rathdown County Council [2019] IEHC 890, and Barna Wind Action Group v An Bord Pleanála [2020] IEHC 177.

15 These judgments emphasise that, in considering whether to remit a planning application to An Bord Pleanála, the court should treat the board as a disinterested party which has no stake in the commercial venture being pursued by the developer. Further, where the board, as the statutory decision-maker, has taken the view that it...